Thursday, September 28, 2017. Hogan Lovells – 875 Third Avenue, New York, New York.
Enforcement of Arbitral Awards
Time was when the only challenge for claimants and their counsel was to obtain an arbitral award. Thereafter, respondents would pay without the need for the successful claimant to take further measures. Today, however, there is considerable evidence that arbitral awards do not automatically produce financial remuneration. Rather, prospective or actual award debtors may engage in further litigation or take steps to make awards difficult to enforce, through secreting of assets, fraudulent conveyances or other activities.
The conference will examine the increasingly important issues of award enforcement through counsel experienced in representing both award creditors and debtors. The challenges in locating and levying on hidden assets will also be discussed as will issues arising out of awards against foreign sovereigns. Panelists will also discuss steps that may be taken in advance of awards, including obtaining attachments to secure payment.
The conference will consist largely of panel discussions each with four to six speakers, including a moderator. Each panel discussion will be 90 minutes in length. Although panel members may present some prepared remarks, the bulk of the panel discussions will consist of interplay among speakers and the moderator as well as persons from the audience. The emphasis will be on communicating with the audience through discussions of actual cases.
The conference will consist of two sessions. The first will be two panel discussions in the morning in which panelists will describe the legal landscape and refer to the problems that arise as a result, oftentimes, of efforts made by judgment or award debtors to hide assets.
The second half of the program, after lunch, will focus on what can be done by award and judgment creditors to cope with evasive or unwilling debtors. The first afternoon panel will discuss discovery, including the location, through asset-tracing investigation, of hidden assets. The last panel will discuss what can be done by claimants in advance of obtaining an award, including attachments of assets, taking steps before initiating a proceeding to determine whether the respondent does in fact have assets and what can be done to have the language of awards made most effective for enforcement. The last session will also discuss challenges in levying on assets of third-party transferees and outsourcing the enforcement activity by selling an award to a third-party funder.
Materials, including statutes, rules, articles and cases, to which reference is made in the conference will be provided.
Program
(09:00 – 12:30)
A. Morning Session The Challenges For Award Creditors
Co-moderators: Lawrence Newman, Lea Haber Kuck
Panelists: Frank Vasquez, George Bermann, Oliver Armas, Christian Alberti
09:00 – 10:30
1. Legal Framework
(a) United States –9 USC and state laws
(i) Confirmation or setting aside of U.S. domestic award
(ii) Judgment enforcement: Fed. R. Civ. P. 69 and state (CPLR)
(iii) International awards – New York/ Panama Convention bases
(b) Enforcing Awards
(i) Outside U.S.
(ii) Awards that are set aside; injunctions against enforcing
(c) Enforcing awards before or after conversion into judgments
11:00 – 12:30
2. Challenges for Award Creditors – Debtor-Driven Issues
Co-moderators: Timothy Nelson, Rahim Moloo
Panelists: Angeline Welsh, Robert Sills, Andrew Loewenstein, Elliot Friedman
(a) Evasion by award debtors: Alleged fraudulent transfers;
de Gusa, Crystallex cases
(i) Blocking statutes and injunctions
(ii) Case studies
(b) Sovereign Immunity
(c) Enforcement of ICSID awards
12:30 -13:30
LUNCH
(13:30-17:00)
B. Afternoon Session: Further Challenges: Resources for Award Creditors
13:30-15:00
3. Challenges in the Enforcement Process: Discovery of and Tracing Assets
Co-moderators: Tim Nelson, J.P. Duffy IV
Panelists: Joseph Neuhaus, Erika Levin, Robert L. Weigel
(a) Discovery Resources
(b) Locating Assets
(i) Separate bank entity rule
(ii) “Location” of assets (Koehler, Hotel 71, Marinas v. CIBC), sovereign cases (e.g., Bank Central de Republica de Argentina)
(c) Asset protection measures– how to cope with them
(d) Asset discovery
(e) Locating and Executing on Assets
15:30-17:00
4. Steps To Be Taken In Advance
(a) Attachments – New York and elsewhere
(b) Shaping awards to maximize enforceability
(c) Use of third-party funding — before and after the award
Register
Online Registration:
*ONLY available to Full-Time Academics with no law firm affiliation, Government Employees, and Full-Time In-House Corporate Counsel.
Download Conference Registration Form
Co-Chairs
Timothy G. Nelson is a Partner in Skadden, Arps, Slate, Meagher & Flom’s New York office. He represents clients in a variety of disputes involving cross-border and international law issues, including arbitration before several major international bodies. Mr. Nelson’s international litigation and arbitration experience includes disputes involving contracts, international trusts, partnerships (limited and general) and corporate law, as well as cases falling under the 1980 Vienna Convention on contracts for the International Sale of Goods. He regularly advises sovereign and corporate clients on public international law issues, including under multilateral treaties, such as NAFTA; bilateral investment treaties (BITS); and other international trade/investment agreements. Mr. Nelson represents clients before, AAA/ICDR, ICC, ICSID, and tribunals constituted under the Arbitration Rules of UNCITRAL among others.
Lawrence W. Newman is Of Counsel in Baker McKenzie’s New York office. He practices mainly in the areas of international litigation and arbitration. He represents clients in courts and before arbitration tribunals, and has served as arbitrator in cases under the rules of AAA/ICDR, and the ICC. He is co-editor of several publications including International Arbitration Checklists and The Leading Arbitrators’ Guide to International Arbitration which was the basis for the annual Leading Arbitrators’ Symposium on International Arbitration held in Vienna. Mr. Newman founded the New York Litigation Department together with the late Professor Henry de Vries.
Speakers
Christian P. Alberti is the Assistant Vice President of the International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AA), in New York City. He supervises the ICDR’s staff and center management activities and oversees hundreds of large complex multi-party arbitrations and mediations covering all types of disputes and industries year. Prior to joining the ICDR in 2005, Mr. Alberti headed the Italian Desk of a law firm in Germany.
Oliver J. Armas is the Managing Partner of Hogan Lovells’ New York office. He is sought out by the firm’s client around the world to resolve some of their most complex and delicate matters in domestic and foreign litigation, before international arbitration tribunals, and to conduct sensitive internal investigations. Mr. Armas leads a multilingual and multicultural team that prides itself on its creative, tenacious approaches to resolving client disputes. The team focuses on energy – oil and gas, power, nuclear, renewable; mining; engineering; manufacturing; licensing, commodities; franchising; agency disputes; financial products and services; M&A; shareholder issues; joint ventures; hospitality; electronics; technology; transportation; and pharmaceutical and life sciences. Mr. Armas has handled arbitration under the rules of many of the major arbitral institutions, including the ICC, AAA/ICDR, LCIA, ICSID, HKIAC and SIAC. Recently, Mr. Armas represented the Government of Mongolia in defending enforcement of an UNCITRAL and Energy Charter Treaty arbitration award (involving the U.S. Foreign Sovereign Immunities Act).
George A. Bermann is the Jean Monnet Professor or EU Law, Walter Gellhorn Professor of Law and the Director for the Center for International Commercial and Investment Arbitration at Columbia University School of Law. He teaches course in transnational dispute resolution (international arbitration and litigation), European Union law, administrative law, and WTO law. Professor Bermann is an active international arbitrator in commercial and investment disputes and chief reporter of the ALI’s Restatement of the U.S. Law of International Commercial Arbitration. He is the chair of the Global Advisory Board of the New York International Arbitration Center (NYIAC) and founding member of the governing body of the ICC Court of Arbitration and a member of its standing committee.
J.P. Duffy is a Partner in Baker McKenzie’s New York office. He focuses his practice on international arbitration and related litigation. Mr. Duffy has extensive experience formulating global dispute resolution strategies for clients facing multi-jurisdictional international disputes and has represented clients across a range of industries in international arbitrations administered under the ICC, AAA.ICDR, LCIA, HKIAC, SIAC, DIAC, JAMS, GAFTA, ICSID and UNCITRAL rules in the US, Europe, Asia, Africa and Latin America. He also enjoys a comprehensive understanding of the interaction between courts and arbitration and has represented clients before US state and federal courts in litigation seeking prospective relief in aid of arbitration, actions under 28 USC §1782 to obtain evidence in support of foreign tribunals and proceedings to enforce arbitral awards.
Elliot Friedman is a Partner in Freshfields Bruckhaus Deringer’s New York office. He focuses on international arbitration (commercial and investor-state) and litigation, particularly in the energy and natural resources sector. Mr. Friedman has handled arbitration proceedings before almost every major arbitral institution. His experience includes disputes involving long-term energy contracts, bilateral and multilateral investment treaties, joint venture agreements, construction contracts, distribution agreements and intellectual property among others. Mr. Friedman represents companies in transnational litigation in US courts, including the enforcement of arbitral awards. Recently, he successfully represented BG Group in the first ever case concerning a bilateral investment treaty to be considered by the US Supreme Court.
Marcus J. Green is the Director of Special Investments in Kobre & Kim’s New York office. He advises clients on judgment enforcement, international asset investigations and recovery, and related debtor-creditor litigation. Mr. Green helps clients realize value from court judgments and arbitral awards in distressed circumstances, including where debtors have undertaken complex asset protection structuring and, in investor-state disputes, where sovereign immunity may be implicated. He develops and implements worldwide asset tracing and recovery plans on behalf of corporate, sovereign and individual clients. These recoveries often involve coordinated efforts throughout the United States, Latin America, the Caribbean, Europe and Asia.
Lea Haber Kuck is a Partner in Skadden, Arps, Slate, Meagher & Flom’s New York office. She concentrates her practice on the resolution of complex disputes arising out of international business transactions. Ms. Kuck represents clients in federal and state courts in the United States, as well as in international arbitration conducted under UNCITRAL, ICC, ICDR, LCIA and other arbitration rules. She regularly advises clients on a variety of issues relating to international dispute resolution, including forum selection, jurisdiction, service of process, extraterritorial discovery and enforcement of judgments, as well as drafting of arbitration, dispute resolution and choice-of-court clauses.
John Lazar is a vice President of Burford Capital’s underwriting and investment arm. He has extensive experience in arbitration and complex commercial litigation matters including securities fraud, accounting fraud, patent analysis and litigation, trade secret theft and complex contractual issues in state and federal trial and appellate courts. Prior to joining Burford Capital, Mr. Lazar was a litigator at Cravath, Swaine & Moore and at Wollmuth, Maher & Deutch.
Erika Levin is a Senior Vice President and General Counsel in TheJudge’s New York office. As a lawyer specializing in litigation and arbitration as well as international business transactions, she has a wealth of experience in international commercial arbitration, complex cross-border litigation, intellectual property, regulatory actions, and private equity. She has represented clients, particularly multi-national corporations, in the construction, energy, finance, manufacturing, insurance and technology sectors. Ms. Levin is a member of the panel of arbitrators for the AAA, ICDR, the Kigali International Arbitration Centre (KIAC) and the Chamber of Arbitration and Mediation of the Federation of Industries of the State of Paraná (“CAM FIEP). Prior to joining The Judge, Ms. Levin was a lawyer at Clifford Chance US LLP, Stone & Magnanini LLP (formerly the New Jersey office of Boies, Schiller & Flexner LLP).
Andrew Loewenstein is a Partner in Foley Hoag’s Boston office. He focuses his practice on public international law as well as investor-state and international commercial disputes. Mr. Loewenstein has particular expertise advising government, corporation, and non-governmental organizations regarding international legal matters, including with respect to international boundary disputes, the U.N. Convention on the Law of the Sea, investor-state disputes, international environment law, and international human rights and humanitarian law. He frequently represents government in cases before various for a, including the International Court of Justice (the “World Court”) in The Hague, the ICSID, the Permanent Court of Arbitration (PCA), and in U.S. court litigation under the Foreign Sovereign Immunities Act (FSIA).
Rahim Moloo is Of Counsel in Gibson, Dunn & Crutcher’s New York office. He is recognized as a leader in the field of international arbitration. Mr. Moloo’s practice focuses on assisting clients to resolve complex international disputes in the most effective and efficient way possible. He also advises clients on the structuring of foreign investment and matters of international law and sits as arbitrator in complex international cases. Mr. Moloo has experience across a number of industries, but especially in energy, mining, telecommunications, financial services, infrastructure, construction and consumer products. Many of the disputes on which Mr. Moloo advises involve claims brought in multiple jurisdictions where important strategic choices must be made about which forum will provide the best result with respect to different aspects of the dispute. And legal solutions often need to be considered in light of other avenues available, such as media campaigns and negotiation between business teams, to reach a favorable result. Mr. Moloo has experience in navigating these various options.
Joseph E. Neuhaus is a partner in Sullivan & Cromwell’s New York office and heads the firm’s arbitration practice. He served as counsel to the Central Bank of Argentina from 2006 to 2016 in defending the bank from attempts by creditors of the Republic of Argentina to attach its assets to secure or pay judgments against the Republic. Mr. Neuhaus has also served as counsel in a variety of arbitrations and arbitration-related international matters, with an emphasis on Latin American disputes. Highlights include numerous representations of investor in investor-state disputes in Latin America, Africa and Central Asia, a number of post-closing adjustment disputes in a variety of industries, representation of Standard Chartered Bank in arbitration of Latin American investors’ claims arising out of the Madoff scandal and representation of Banco Popular, the largest bank in Puerto Rico, in a series of arbitration with the U.S. FDIC arising out of the purchase of nonperforming assets from the FDIC as receiver of a failed bank. He has also served as arbitrator, including as chair, in ICC, ICDR and ad hoc arbitrations. Mr. Neuhaus is the Vice Chair of the Institute for Transnational Arbitration, a member of the Executive Committee of the New York International Arbitration Center, and a member of the Board of Directors of the CPR Institute and of the Council of the American Arbitration Association.
Claudia T. Salomon is a Partner in Latham & Watkins’ New York office. She is the global Co-chair of the firm’s international Arbitration Practice. Her practice is focused is focused on complex international disputes. Ms. Salomon is a leading advocate in significant investor treaty arbitration and international commercial arbitration cases. She has experience handling cases under all of the major arbitral rules, in venues around the globe, under common law and civil law. Ms. Salomon has extensive experience representing clients in Latin America. She also litigates in connection with arbitration, including enforcing arbitral awards worldwide and obtaining emergency relief. Ms. Salomon is the US member of the ICC International Court of Arbitration and serves as the Co-chair of the ICC Taskforce on Financial Institutions and International Arbitration.
Robert Sills is a Partner in Orrick’s New York office and the co-head of the firm’s international arbitration and litigation practice. He has extensive experience litigating complex cross-border matters before arbitration agencies and in state and federal courts, as well as in domestic disputes. Mr. Sills has represented parties in arbitration held under the auspices of most major arbitration agencies, including the ICC, LCIA, AAA, SCC, the Japan Commercial Arbitration Association and JAMS, as well as non-administered arbitrations conducted under UNCITRAL and other rules. He also regularly advises transactional attorneys at Orrick on a variety of issues related to the drafting and negotiation of arbitration provisions and has been involved in a number of significant litigation related to those arbitration, including two successful applications for anti-suit injunctions to halt foreign lawsuits brought by parties to arbitration agreements.
Francis A. Vasquez Jr. is a Partner in White & Case’s Washington, D.C. office. He is an experienced litigation and arbitration advocate, who works with clients in a number of different areas, including antitrust, intellectual property, and litigation involving complex industrial projects and financial instruments. Mr. Vasquez has a distinguished track record, and frequently examines key witnesses and presents oral argument in high-profile cases. He has appeared in numerous international arbitration and US court actions involving foreign sovereigns, commercial entities, international organization and related affiliates Mr. Vasquez has appeared on behalf of the prevailing party in some of the larges ICSID cases on record.
Robert L. Weigel is a Partner in Gibson, Dunn & Crutcher’s New York office. Mr. Weigel is an experienced commercial litigator with extensive trial experience. He focuses on litigation concerning complex financial transactions, particularly for international clients in Europe, Asia and the Middle East. Mr. Weigel has applied his extensive knowledge of financial transactions to develop worldwide judgment enforcement strategies and has applied those strategies to bring cutting edge lawsuits to combat the sale of goods.
Angeline Welsh is a Barrister with Matrix Chambers. She specializes in international arbitration (commercial and investment treaty) and public law. She has acted as counsel on complex arbitrations conducted under a wide range of institutional rules, across sectors as diverse as energy, telecoms, construction and finance and in jurisdictions across the world. Ms. Welsh, who is admitted to the bars of England and Wales and Belize and also sits as arbitrator, has particular expertise in court applications relating to arbitration, including anti-suit injunctions, interim relief in support of arbitration and enforcement of arbitral awards. Prior to joining Matrix,, Ms. Welsh was counsel and solicitor advocate in the International Arbitration Group at Allen & Overy LLP, spending time in the London and Hong Kong offices and on secondment to the LCIA.
Wieger Wielinga is the Managing Partner of Omni Bridgeway located in The Netherlands. Omni Bridgeway has been funding and managing complex litigation and arbitration (ICSID, UNCITRAL, ICC, SCC) for governments, insurers and multinationals since 1986. Mr. Wielinga began his career in 1992 as an attorney at Loeff Claeys Verbeke (now Allen & Overy), where he specialized in litigation and insolvency matters. He has extensive litigation and debt restructuring experience, including as court appointed receiver and advisor to the World Bank, the International Finance Corporation and international banks.
David Zaslowsky is a Partner in Baker McKenzie’s New York office. He chairs the New York office’s Litigation Department and practices in the area of general commercial litigation and arbitration. Mr. Zaslowsky has worked on many cases involving issues of international litigation, including matters related to the Foreign Sovereign immunities Act, enforcement of foreign arbitral awards, the Alien Tort Claims Act, forum non conveniens, obtaining discovery in aid of foreign proceeding under 28 U.S.C. Section 1782, and foreign attachments. He has participated in arbitrations, both inside and outside the US, under the rules of various arbitral institutions. These include, AAA, ICC, Iran-United States Claims Tribunal, International Centre for Dispute Resolution and NASD, as well as ad hoc arbitrations. Mr. Zaslowsky also serves as an arbitrator and is on the panel of international arbitrators of the International Centre for dispute Resolution
Accommodations
Travel and hotel expenses are not included in the registration fees. Participants are responsible for making their own travel arrangements and hotel reservations.
The following hotels are located close to the conference venue: Hogan Lovells, 875 Third Avenue, New York, NY 10022
48 Lex
www.hotel48lexnewyork.com
The Benjamin
www.thebenjamin.com
The Lexington Hotel
www.lexingtonhotelnyc.com
Lotte New York Palace
www.lottenypalace.com
New York Marriott East Side
www.marriott.com/hotels/travel/nycea-new-york-marriott-east-side/
